Appeal by defendant from judgments entered 1 April 2005 by
Judge David S. Cayer in Gaston County Superior Court. Heard in the
Court of Appeals 11 September 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General W. Dale Talbert, for the State.
William D. Auman for defendant-appellant.
Defendant Tavarus Leon Lipscomb appeals from his convictions
for robbery with a firearm, discharging a weapon into occupied
property, possession of a firearm by a felon, felonious breaking or
entering, and three counts of assault by pointing a gun.
Defendant's first argument on appeal is that the trial court erred
by granting the State's motion to join the possession of a firearm
charge with the other charges. We hold that defendant did not
properly preserve this issue for appeal. Defendant also assigns
error to the trial court's denial of his motion to dismiss the
charges for insufficient evidence that defendant was theperpetrator of the crimes. We disagree because we find that the
eyewitness testimony of two of the victims was sufficient to allow
the charges to go to the jury. Having found no error in
defendant's trial, we uphold his convictions and sentences.
Facts and Procedural History
The State's evidence tended to show the following facts.
Around 8:00 p.m. on the evening of 23 August 2004, 16-year-old
Joshua White and his 11-year-old cousin, Dadrain White, were
playing in Joshua's bedroom when they observed the home's exterior
motion lights come on, and they heard knocking on the door. Their
great-grandmother, Earline White, who was in the living room,
called for Joshua to open the door. Joshua, mistakenly believing
the knocking was coming from a side entry door, opened the side
door and saw no one. He then heard a gunshot coming from the front
of the house, locked the side entry door, and hid with Dadrain in
a closet. While in the closet, the two boys heard someone outside
the house hammering at the front door and yelling. Following some
additional gunshots, they heard someone begin yelling from inside
the house about money.
At this point, Joshua left the closet and headed for the
living room to check on his great-grandmother. Before he could
reach the living room, Joshua encountered defendant, whom he
recognized as an acquaintance of his mother's boyfriend. Defendant
pointed a handgun at Joshua's chest and demanded to know who else
was at home and where money was kept in the house. Dadrain then
left the closet and joined Joshua. Defendant pointed the handgunat Dadrain and asked him the same questions. Joshua directed
defendant to a small safe located in his mother's bedroom, where
Dadrain's sister, eight-year-old Zakia, was watching television.
Defendant retrieved the safe and brought it to the front door,
where he began to shoot at it. When he was unable to open it that
way, he again pointed his gun at Joshua, Dadrain, and Ms. White and
said that if there was no money in the safe, he would come back and
shoot them. He picked up the safe and carried it out the front
door. After defendant walked to a stop sign two houses away,
Joshua and Dadrain ran to a neighbor's house and called the police.
Defendant was indicted on one count of robbery with a firearm,
one count of first degree burglary, one count of possession of a
firearm by a felon, one count of discharging a firearm into
occupied property, and four counts of assault by pointing a gun.
Following a trial, a jury convicted defendant on 30 March 2005 of
robbery with a firearm, possession of a firearm by a felon,
felonious breaking or entering, discharging a firearm into occupied
property, and three counts of assault by pointing a gun. Defendant
was acquitted of the remaining charge of assault by pointing a gun,
based on his encounter with Zakia. The trial court sentenced
defendant to 103 to 133 months for the robbery with a firearm
charge. Defendant received a consolidated sentence of 34 to 50
months for the remaining charges, to be served consecutively.
In his first assignment of error, defendant contends the trial
court committed error by allowing the State's motion to join thecharge of possession of a firearm by a felon for trial with the
other charges. Defendant concedes that he did not object to or
argue against the State's motion below, and that he has therefore
failed to preserve the issue for appellate review. N.C.R. App. P.
10(b)(1) ("In order to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling
the party desired the court to make . . . .").
Nonetheless, defendant argues that this Court should review
the trial court's action for plain error under N.C.R. App. P.
10(c)(4) ("In criminal cases, a question which was not preserved by
objection noted at trial and which is not deemed preserved by rule
or law without any such action, nevertheless may be made the basis
of an assignment of error where the judicial action questioned is
specifically and distinctly contended to amount to plain error.").
It is well-settled, however, that plain error analysis under Rule
10(c)(4) is available only for errors in jury instructions and
evidentiary matters. State v. Greene
, 351 N.C. 562, 566, 528
S.E.2d 575, 578, cert. denied
, 531 U.S. 1041, 148 L. Ed. 2d 543,
121 S. Ct. 635 (2000). The error asserted in this case pertains to
the grant of a joinder motion by the State _ a matter in which the
trial court has wide discretion. State v. Bell
, 359 N.C. 1, 16-17,
603 S.E.2d 93, 105 (2004) ("'The propriety of joinder depends upon
the circumstances of each case and is within the sound discretion
of the trial judge.'" (quoting State v. Golphin
, 352 N.C. 364, 399,
533 S.E.2d 168, 195 (2000), cert. denied
, 532 U.S. 931, 149 L. Ed.2d 305, 121 S. Ct. 1379-80 (2001))), cert. denied
, 544 U.S. 1052,
161 L. Ed. 2d 1094, 125 S. Ct. 2299 (2005). Because the challenged
ruling is discretionary and pertains to neither jury instructions
nor evidence, we may not exercise plain error review. State v.
, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000) ("[T]his Court
has not applied the plain error rule to issues which fall within
the realm of the trial court's discretion . . . ."), cert. denied
531 U.S. 1167, 148 L. Ed. 2d 997, 121 S. Ct. 1131 (2001).
Defendant's first assignment of error is accordingly overruled.
In his remaining assignment of error, defendant contends the
court erred by denying his motion to dismiss the charges on the
ground of insufficiency of the evidence. In ruling on a criminal
defendant's motion to dismiss, the trial court must determine
whether the State has presented substantial evidence (1) of each
essential element of the offense and (2) of the defendant's being
the perpetrator. State v. Robinson
, 355 N.C. 320, 336, 561 S.E.2d
245, 255, cert. denied
, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S.
Ct. 488 (2002). "'Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'" State v. Matias
, 354 N.C. 549, 552, 556 S.E.2d 269,
270 (2001) (quoting State v. Brown
, 310 N.C. 563, 566, 313 S.E.2d
585, 587 (1984)). "'Whether evidence presented constitutes
substantial evidence is a question of law for the court.'" State
, 351 N.C. 576, 584-85, 528 S.E.2d 893, 899 (quoting State
, 329 N.C. 278, 322, 406 S.E.2d 876, 901 (1991)), cert.
, 531 U.S. 994, 148 L. Ed. 2d 459, 121 S. Ct. 487 (2000). When considering the issue of substantial evidence, the trial court
must view all of the evidence presented "in the light most
favorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in its
favor." State v. Rose
, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994), cert. denied
, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
Here, defendant does not contest the sufficiency of the
evidence to establish the elements of the offenses. Rather, he
only argues that the uncorroborated testimony of Joshua and Dadrain
is insufficient to identify defendant as the perpetrator. The
general rule is that the credibility of identification testimony is
for the jury to determine. State v. Guffey
, 265 N.C. 331, 332, 144
S.E.2d 14, 16 (1965). This rule does not apply, however, when "the
only evidence identifying the defendant as the perpetrator of the
offense is inherently incredible because of undisputed facts,
clearly established by the State's evidence, as to the physical
conditions under which the alleged observation occurred." State v.
, 270 N.C. 726, 731, 154 S.E.2d 902, 905 (1967). If,
however, "there is a reasonable possibility of observation
sufficient to permit subsequent identification, the credibility of
the witness' identification of the defendant is for the jury, and
the court's doubt upon the matter will not justify granting a
motion for judgment of nonsuit . . . ." Id
. at 732, 154 S.E.2d at
In this case, when the evidence is viewed in the light mostfavorable to the State, the eyewitness testimony from the two boys
was sufficient to allow a reasonable jury to find that defendant
was the perpetrator of the crimes. Joshua had ample opportunity to
view the perpetrator and to make an identification. He viewed the
perpetrator at arm's length while the perpetrator held a gun to his
chest; he also recognized the perpetrator as someone he had seen
talking to his mother's boyfriend a week earlier. Furthermore, he
gave the police a detailed description of the perpetrator's
hairstyle and clothing. Finally, he made an immediate and positive
identification of defendant as the perpetrator from a photograph
lineup. Dadrain also identified defendant in court as the
perpetrator. Defendant's final assignment of error is accordingly
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
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